One expert's view on honest services fraud and who should worry

April 20, 2009|Posted by Scott Wyman on April 20, 2009 01:48 PM

So back to honest services fraud? Should officials in Broward County be worried or shouldn?t they? It?s a hotly debated topic -- Mayor Stacy Ritter and Vice Mayor Ken Keechl discussed it this weekend on her radio show.

One of the ultimate authorities on U.S. law says concern is warranted. That word came from none other than Supreme Court Justice Antonin Scalia.

Although it?s received little national attention, Scalia laid out two months ago just how broadly prosecutors could use the honest services fraud statute in their quest to tackle public corruption. The statute makes it a federal crime to deprive people of their ?intangible right of honest services? and is at the heart of recent prosecutions in Palm Beach County.

Scalia in February issued a stinging dissent when the Supreme Court refused to take up an appeal of a honest services fraud conviction out of Chicago. Robert Sorich, a former top aide to the mayor of Chicago, was convicted of honest services fraud because he rewarded supporters of the mayor with city jobs. Prosecutors said Sorich had an obligation not to engage in patronage politics.

Scalia said the statute was so vague that it could arguably encompass ?a mayor?s attempt to use the prestige of his office to obtain a restaurant table without a reservation; a public employee?s recommendation of his incompetent friend for a public contract; and any self-dealing by a corporate officer.? Scalia added, ?Indeed, it would seemingly cover a salaried employee?s phoning in sick to go to a ball game.?

Scalia unsuccessfully urged the court to take up Sorich?s case and decide whether the honest services law passes constitutional muster. He questioned if it?s the federal government?s role to define ethics standards for local officials and said the statute is potentially so broad that officials would not know if they are violating it.

?Without some coherent limiting principle to define what 'the intangible right of honest services' is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct,? Scalia wrote.